Readers might suppose that when ten heads of local universities got together to announce a joint view of the thorny topic of Hong Kong independence and its presence on university notice boards, then the resulting document would reflect the learning of the people producing it, and some care and study in the preparation.
Cynics like me, on the other hand, would just expect a higher class of bullshit. Many years ago I was told by the then Senior Tutor of an Oxford College that it was a serious mistake to suppose that academics who could write with impeccable logic about their studies would be equally rational in dealing with other matters. On such matters they were likely to be as casual and prejudiced as the rest of the population. Modern psychologists would say that the ability to think rationally from factual premises has to be learned, and is domain-specific.
So here we have ten vice chancellors opining that notices advertising Hong Kong independence are “unconstitutional”. Which is nonsense. Constitutional law, as I used to put it when I was teaching this stuff, “regulates the activity of the government and legislature”. Or in the dictionary: “Constitutional law is the body of law which defines the role, powers, and structure of different entities within a state.” As the Chinese U democracy board is neither the government, the legislature or any other “entity within the state,” nothing that appears on such a board is either constitutional or unconstitutional. Wrong law book.
Actually the only part of the Basic Law which is relevant to the Vice Chancellors’ problem is the one which states that Hong Kong people enjoy freedom of speech. This includes the freedom to expound ideas with which “all our universities disagree”.
That ought to be that. But as the SCMP managed to find an academic in Beijing who claimed that advocating independence was a crime for which the perpetrators should be prosecuted forthwith, we had better visit that possibility as well.
The relevant legal principle here is another of those little pieces of Latin (sorry) which goes “Nullum crimen sine lege.” This means literally “never a crime without a law,” or to put it the other way round, if there is no law against something then it cannot be a crime. Clearly the fact that something is stated in the preamble of the Basic Law – like “Hong Kong is an inalienable part of China” – cannot by itself make arguing for an alternative point of view a crime. Not only is there no definition of the offence. There is no help on important practical points like which court the offence be tried in, is a jury available as an option, or required, and what is the maximum punishment?
We then move on to the famous Article 23, which is short enough to be given in full: “The Hong Kong SAR shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets.”
Two problems immediately arise. The first one is that the Hong Kong SAR has not yet actually got round to enacting the law concerned. Things do not become crimes just because the government is going to legislate against them at some point in the future. The second point is that the laws, when they arrive, will criminalise acts. Putting up a notice or expressing an opinion is not an act of secession or anything else. It is a piece of self-expression.
Then we are offered section 9 of the Crimes Ordinance, which includes an elaborate and comprehensive definition of sedition. But it also includes this:
2) An act, speech or publication is not seditious by reason only that it intends—
(a) to show that Her Majesty (HM) has been misled or mistaken in any of her measures.
(b) to point out errors or defects in the government or constitution of HK as by law established or in legislation or in the administration of justice with a view to the remedying of such errors or defects; or
(c) to persuade HM’s subjects or inhabitants of HK to attempt to procure by lawful means the alteration of any matter in HK as by law established; or
(d) to point out, with a view to their removal, any matters which are producing or have a tendency to produce feelings of ill will and enmity between different classes of the population of HK.
Clearly discussion of independence would be covered by exception (c), and probably by (b) as well. So the Polytechnic University’s defence of censorship, that it is designed to protect students from legal trouble, is based on a misconception.
If you feel that these legal arguments do not really get to the nub of the problem – and anyway I am not a lawyer – consider something else. Senior government officials from Her Ladyship down have been extremely critical of advocates of independence. But words are chosen more carefully in the upper reaches of government than they are in the upper reaches of universities: none of the complaining bigwigs has suggested that the controversial notices were criminal.
Also, the Department of Justice, and for that matter other departments, have been extremely resourceful and persistent in finding ways of persecuting political groups with independence on their programmes. But nobody has actually been prosecuted for advocating independence. Government lawyers have clearly come to the same conclusion as me: such a prosecution would fail. I suppose this may also explain Junius Ho’s alternative suggestion that advocates of independence should be murdered. Saves court time.
See also: Hong Kong independence messages not a question of free speech, says Chief Exec. Carrie Lam
Of course the fact that talking about independence is legal does not necessarily mean that it is a good idea. But I fear Lord Patten has misunderstood the situation after hearing his complaint that the pursuit of independence was a distraction from the pursuit of democracy. After 20 years of lies, evasions and postponements, many Hong Kong people have concluded that they will never get democracy if it has to come as a gift from Beijing. Independence is not an alternative target to democracy; it is an essential precondition for it. Promises to the contrary are worthless. But His Lordship sold us this lemon. It is understandable that he would like us to believe there is still some juice in it.
